Donald O. Williams, Committee Policy Analyst

Note: Interested parties observed the meeting and provide testimony through a simultaneous video conference in Room 4401 of the Grant Sawyer State Office Building, 555 East Washington Avenue, Las Vegas, NV.

Chairman Anderson opened the hearing on A.B. 409.

Assemblyman Gustavson distributed (Exhibit C) to the Committee on Judiciary. He called Maureen Brower and Judy Henderson to join him. A.B. 409 related to emergency care by extending limited immunity from liability regarding the use of automated defibrillators and related training; extending limited immunity from liability to licensed practical nurses for providing or supervising certain emergency care; extending limited immunity from liability to certain providers of healthcare licensed in another state who render emergency care to persons in Nevada; conforming certain related provisions regarding the occupational safety program; and providing other matters properly relating thereto.

Maureen Brower, representing the American Heart Association, testified for A.B. 409 and she provided Exhibit D to the committee. She stated the American Heart Association strongly supported A.B. 409. The bill would extend the immunity from liability in an emergency regarding the use of Automated External Defibrillators (AED). AEDs were important in strengthening the chain of survival because they could restore a normal heart rhythm in sudden cardiac arrest victims and because new, portable models allowed more people to be assisted in a medical emergency where defibrillation was required. When a person suffered from a sudden cardiac arrest, for each minute without defibrillation the victim’s chance of survival decreased by 10 percent. AEDs had saved lives. The American Heart Association supported placing the life saving devices in targeted public areas such as sports arenas, gated communities, office complexes, doctors’ offices, schools, and shopping malls. Some organizations, which might otherwise obtain an AED, were concerned about the exposure to liability lawsuits. A.B. 409 extended Good Samaritan protection to those organizations housing an AED, the physician who prescribed the AED, and the trainers. She suggested the following three amendments:

Chairman Anderson asked if the bill set up a peculiar protection to someone who had not been trained to use an AED. Ms. Brower responded on page 2 in subsection 8, "Any person who has successfully completed a course in cardiopulmonary resuscitation and training in the operation and use of an automated external defibrillator." She stated the American Heart Association was making sure the people were properly trained in the use of the AEDs.

Judy Henderson, Director of Health Safety, Sierra Nevada Chapter of American Red Cross, testified for A.B. 409. The American Red Cross was a unique private nonprofit organization with the humanitarian mission to provide relief to victims of disasters and to assist people to prevent, prepare for, and respond to emergencies. There were two AED training programs. The first AED training was for professional rescuers and the second AED training was for the lay person. The lay person training was a 4-hour course combining AED training with cardiopulmonary resuscitation (CPR) for the general public. That program would save 250 lives every day in our country. She had the following two amendments to the bill. See (Exhibit E).

The American Red Cross did not want to place financial burdens on business owners to have AEDs in their place of business and the phrase, "the regular participation of a physician," was ambiguous.

Karen Strutynski, Volunteer, American Red Cross testified for A.B. 409. See (Exhibit F). She had been an American Red Cross volunteer since 1972. She was an authorized instructor in emergency response and community first aid. She was a licensed firefighter EMT–1 pediatric advanced life support for Nevada and a volunteer for Clark County Fire Department. Last year in Clark County 25 casino patrons’ lives were saved as a result of training in use of an AED in conjunction with CPR. (Exhibit F)

Terence D. Valenzuela, MD, MPH, FACEP, FACP, Professor, University of Arizona, testified for A.B. 409. The current AED machines were simpler to use. In traveling across the United States, the most common concern of any group was litigation and liability. A second concern was the possibility of harming a person in cardiac arrest. The new generation of AEDs would not defibrillate unless the machine determined the patient needed a shock. He stated he would bet his life on the safety of the machines. Dr. Valenzuela had trained his 8 and 9-year old sons to use an AED on him.

Assemblywoman Koivisto was concerned about the operator of an AED being trained to know the difference between a heart attack and cardiac arrest. Dr. Valenzuela stated the vast majority of patients who dropped with a heart problem experienced an electrical problem with the heart in which an AED would help the patient. Assemblywoman Koivisto asked how the AED computer knew when to shock a person. Dr. Valenzuela responded the computer in the AED would make a noise and tell the operator to shock the patient if the patient needed to be defibrillated. If the AED computer did not sense the patient needed to be defibrillated, the AED would not "charge up." In other words, the operator of an AED would not be able to accidentally shock a person.

Chairman Anderson asked if there was any additional information he could supply the committee to increase the committee’s "comfort level" with the bill and all its implications. Dr. Valenzuela stated people would live with the possibility of harm being extremely small. Assemblywoman Leslie asked if everyone, including children, should be trained to use an AED. Dr. Valenzuela answered do not train everyone with that generation of AED. He wanted to stage the implementation and first train people who had been responding to emergencies but did not have medical training, such as casino security guards. Second train all law enforcement and firefighters on AEDs. Dr. Valenzuela wanted every ambulance and police vehicle equipped with an AED. He would wait until the next generation of machines to train everyone. The next generation of AED machines would need to be as safe as a fire extinguisher before he would want everyone trained on AED machines.

Assemblyman Nolan testified as an instructor of advanced life support. He had been an Emergency Medical Technician (EMT) for 15 years. The bill covered first aid and CPR efforts. CPR did not revive a patient. CPR sustained a person until an AED would shock the patient’s heart back to a normal rhythm. Assemblyman Nolan noted the importance of AEDs in rural ambulances. In Nevada only urban ambulances had AEDs. He was in favor of the immunity in A.B. 409.

Richard Schlegel, Executive Director, Nevada Nurses Association, testified for A.B. 409. See (Exhibit G). The Nevada Nurses Association appreciated the opportunity to provide supportive testimony on A.B. 409 which would extend immunity from liability for Licensed Practical Nurses (LPN) and would also provide immunity for the use of an AED by trained individuals at the scene of an emergency. He was unaware the current Good Samaritan Law did not include provisions for LPNs who rendered aid within their scope of practice at the scene of an emergency and believed it would be appropriate to include them in the bill. He supported immunity from liability for laypersons and certain providers of licensed health care deemed qualified by the provisions in the bill and used an AED at an emergency scene.

Michael Williams, Chief Executive Officer (CEO), Nevada Medical Response Southwest Division, testified for A.B. 409. He had 30 years of Emergency Medical Service (EMS) experience. He was the EMS Director for the State of Florida from 1988 to 1994 when Florida was one of the first states to adopt the same legislation before the committee. He had reviewed the bill and stated it would help citizens of the State of Nevada. In Laughlin casino workers have had the AED training. If a person had a heart attack in one of the Laughlin casinos, the patient would have a survival rate of 70 percent. That was better than any hospital in the world. With good training, immunity from liability, and more AEDs available, lives would be saved.

Stan Smith, Corporate Director for Risk Management, Boyd Corporation testified for A.B. 409. Boyd Corporation was the first casino in Nevada to purchase and implement AEDs. The Boyd Corporation AEDs had saved 12 lives, 11 customers and I employee.

Kathy Deuel, parent of a son David, who was 13 years old when he died of a heart attack on February 6, 1999, testified from Las Vegas for A.B. 409. She shared her grief in a letter she read to the committee. She would never see her son’s smile or see his wife and children. The heart specialist and the coroner said if there had been an AED at the basketball game when David had his heart attack, he would have lived.

James Gubbles, Vice President for Corporate Services, Regional Emergency Medical Services Authority (REMSA), testified for A.B. 409. Mr. Gubbles proposed the following amendments.

Ms. Lang stated Nevada Revised Statute (NRS) defined the term person as "includes a natural person, any form of business or social organization and any nongovernmental entity or legal entity."

Kathy Apple, M.S., R.N., Executive Director, Nevada State Board of Nursing, testified for A.B. 409. She wanted to amend page 4, lines 22 and 23, by removing "licensed practical nurse."

Bill Bradley, attorney, representing Nevada Trial Lawyers Association, testified in support of A.B. 409. He had the following three concerns:

Assemblyman Nolan stated the company who employed him was a public transportation company and had researched the Good Samaritan laws in all 50 states. The company had contemplated training its employees in CPR and placing AEDs in their buses. In most states if an employee was "on the clock" and performed CPR or used an AED, the employee would not be performing the service gratuitously. Mr. Bradley stated he did not know about the other 49 states. However, in Nevada gratuitous referred to no legal relationship between the two people. When someone was paid by their employer and rendered an emergency service having nothing to do with their job, the relationship was gratuitous.

Assemblywoman Buckley mentioned there seemed to be a problem with the word gratuitously. She requested a definition of the word gratuitously for the bill.

Assemblyman Collins mentioned he had his first aid card for 23 years because of his work situation. There must be at least one person trained in first aid on a construction site. He wanted the word gratuitously clarified.

Chairman Anderson encouraged the training and the distribution of AEDs in Nevada.

Assemblyman Brower stated he was willing to work with Mr. Bradley to correct the language in the bill.

Assemblywoman Buckley wanted all those people not medically trained to be covered under the word gratuitously.

Chairman Anderson closed the hearing on A.B. 409. He wanted the word "gratuitously" defined on page 3, line 30; on page 3, line 34 the terms "willful or wanton misconduct" were to be removed; on page 9, line 36 the words "business or organization" were to be retained; on page 4, lines 2, 3, 19, and 20 the terms "participating physician" were to be removed; and on page 4, lines 22 and 23 the words "licensed practical nurse" were to be removed. The committee would look at the bill during the work session on Tuesday, March 30, 1999.

Chairman Anderson opened the hearing on A.B. 407.

Laurel Stadler, Legislative Liaison, Mothers Against Drunk Driving, (MADD) Lyon County Chapter testified for A.B. 407. See (Exhibit H). The main thrust of the bill was found on page 3, lines 41-42 where the .18 percent threshold for the first-time offender was deleted. The bill was an early intervention measure. That would ensure all driving under the influence (DUI) offenders were evaluated at their first offense to determine if they were an abuser of alcohol or drugs. After evaluation, appropriate treatment would be ordered for the offender. Treatment providers had stated the earlier the intervention, the more positive the results from treatment. Ms. Stadler continued, first-time DUI offenders had driven at least 200 times drunk before their arrest. She had related the 200 times figure at every victim impact panel she had presented to DUI offenders and had never been challenged. Towards the end of a victim impact panel, she stated, "Many of you have driven drunk 200 times this year," and she had seen several heads nodding in agreement. First-time DUI offenders were not the "oops I drank too much at a wedding" offenders. The first-time offender was more inclined to be someone with an alcohol or drug abuse problem, regardless of the Blood Alcohol Content (BAC). The provision would cause the offender who had multiple convictions, all of which were outside the 7-year window, to be evaluated and treated as if it was his/her "first" offense. She recommended the following amendments.

Chairman Anderson asked if a first-time offender and second-time offender were treated the same. Ms. Stadler responded first-time offenders and second-time offenders would receive an evaluation, and if appropriate, the offenders would receive treatment. Ms. Lang stated the intent of the bill was to require every first-time offender be evaluated first. After evaluation, the appropriate program to assist the offender would be put into effect for the offender. Chairman Anderson stated that several years ago some educational programs consisted of watching videos of car crashes. He wanted to treat the offender and retain the educational opportunity. He wanted to know who was going to pay for the evaluation, the education, and the treatment program. Ms. Stadler responded the offender would pay for their evaluation, their education, and their treatment program as first and second-time offenders. The bill basically would take away the .18 percent BAC for the first-time offender, and every first-time offender would be evaluated and placed into treatment if appropriate. Assemblyman Carpenter stated the .18 BAC was previously placed in the bill as a compromise. He stated he was pleased to see the evaluation for the first-time offender in the bill.

Garry E. Rubinstein M.A., Coordinator, Substance Abuse Program, University of Nevada, Reno, testified for A.B. 407. The most important part of the bill was to provide appropriate intervention and determination of the nature of the offense of the DUI. The evaluation would determine the appropriate level of treatment for the first-time DUI offender. The offender would pay for the costs with a payment schedule arranged if needed. He was concerned with saving lives. He stated, historically, a number of first-time offenders had become second-time DUI offenders. Addiction was the reason for the recidivism.

Kevin Quint, Executive Director, Churchill Counsel on Alcohol and Drugs testified for A.B. 407. The Churchill Counsel on Alcohol and Drugs served 6 counties and performed 300 evaluations a year. Not every first-time DUI offender was alcoholic although a number of first-time DUI offenders were alcohol abusers. Assemblywoman Leslie wanted to know how many people would need to be evaluated. Her second question was whether the system could handle all the evaluations. Mr. Quint stated there were mandated evaluation centers in Clark and Washoe Counties. The Clark and Washoe County evaluation centers were capable of handling the evaluations. He felt rural counties could handle the increase in evaluations.

Roger B. Whomes, Deputy District Attorney, Criminal Division, Washoe County District Attorney, testified for A.B. 407 on behalf of the Washoe County DUI Taskforce. He gave an example of a 19 year-old female who was a second DUI offender within 9 months of the first DUI. He felt if she had been evaluated after the first DUI, she would not have received a second DUI. Assemblyman Carpenter asked why page 3, lines 25 through 27, were deleted. Mr. Whomes responded lines 25 through 27 allowed non-residents to take a level 1 DUI education course by correspondence. A.B. 407 made some changes because first-time DUI offenders would be evaluated. The court would send the DUI offender to the proper level of treatment even for out-of-state residents. Out-of-state residents would be under the supervision of the local court in their state. Assemblyman Carpenter asked if the correspondence education course on page 3, lines 25 through 27 was being used. Mr. Whomes responded the education course was still being used. He explained if A.B. 407 passed, the correspondence education course would not be needed. The bill with the evaluation would be a valuable tool for the judge to get the DUI offender assistance so as not to be a repeat offender.

Chairman Anderson asked if Mr. Whomes felt the correspondence course should not be used. Mr. Whomes responded the correspondence course would be used if the evaluator said the correspondence course should be used. Mr. Rubinstein responded the evaluation would be completed first and second would be the appropriate service to stop the unwanted behavior. Chairman Anderson stated in the past in the rural counties, the correspondence course was the best under the circumstances. Mr. Rubinstein stated the evaluator would recommend to the court the appropriate intervention.

Assemblyman Claborn asked about the cost of an evaluation. Mr. Rubinstein answered the DUI offender would pay for the evaluation which was about $100. The cost of the evaluation could be placed on a sliding scale. Assemblyman Claborn asked if the cost of the evaluation was in addition to a fine. Mr. Rubinstein responded the DUI offender paid for the evaluation and paid for the fine assessed by the judge. The fine would be a separate financial obligation. Chairman Anderson asked if some insurance companies would ask for an evaluation as part of their assessment of a proposed insured person. Mr. Rubinstein answered yes, some insurance companies did ask for evaluations.

Jim Holmes, Vice Chairman, Northern Nevada DUI Task Force, testified for A.B. 407. Northern Nevada DUI Task Force was responsible for running the victim impact panel (VIP). VIP had 270 DUI offenders go through its program each month in Washoe County. A peace officer had informed VIP there were about 30,000 persons a month driving under the influence in Washoe County, but were not arrested. He stated there were many repeat offenders. With the bill, Northern Nevada DUI Task Force would expect the repeat DUI offenders to be greatly reduced.

Assemblyman Carpenter was concerned about the confusion of DUI. He noted page 4, line 4 of NRS 484.379 stated a first DUI offender under 21 years of age shall be evaluated. He wondered why in the example Mr. Whomes gave of the 19 year old female DUI offender, the judge did not order an evaluation.

Chairman Anderson asked about section 2, page 3, lines 40 through 43 and page 4, lines 1 through 3 which stated, "If a person is convicted of a first violation of NRS 484.379 within 7 years or a second violation of NRS 484.379 within 7 years, the court shall, before sentencing the offender, require an evaluation of the offender pursuant to subsection 2, 3, or 4 to determine whether he is an abuser of alcohol or other drugs." In answer to the Chairman, Mr. Rubinstein said he wanted DUI offenders to be evaluated each time the offender was arrested for DUI. Ms. Lang responded the language mirrored the language in current statutes. Ms. Lang stated the bill did not have a conflict with any other bill.

Chairman Anderson closed the hearing on A.B. 407. The amendments would be the following:

ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS A.B. 407.

ASSEMBLYMAN MANENDO SECONDED THE MOTION

THE MOTION CARRIED UNANIMOUSLY.

Assemblyman Manendo would present the bill to the Assembly.

Chairman Anderson opened the hearing on A.B. 442.

A.B. 442 improved upon existing beneficial legislation. It furthered the public policy purposes of getting homeowner construction defect claims quickly repaired and without cost to the innocent owner.

Scott Canepa, attorney, representing Nevada Trial Lawyers Association, introduced a client in Las Vegas, William J. Robinson. Mr. Robinson, president, Rancho Santa Fe Homeowner’s Association, using video tape presentation, told about health and safety issues of mold in the houses, leaking roofs, no firewalls between the townhouses, substandard wiring in homes, and numerous building code violations. He stated building inspectors only inspected 2 percent of the homes. Inspecting 2 percent of the homes was not good enough to prevent violations to the building code. Assemblyman Carpenter asked if the changes took mediation out of bill. Mr. Maddox responded no, only if the builder did not try to repair the problem.

Bonnie Sherfield, private citizen, testified for A.B. 442. She had seen several condominiums before making her decision to buy. Purchasing her condominium in 1984, she thought she had made a good decision only to discover cracks appeared in the walls and floors in most of the rooms. She did not get help from the contractor who constructed her condominium. She had repairs made in 1989, but the situation grew worse. Her condominium became unsafe and had to be abandoned. She felt she had been robbed of her home and the money spent on repairs.

Ignacia Quinata, private citizen, testified for A.B. 442. Her family saved for 20 years to purchase a home. The expansion soil had caused the foundation to buckle pushing the walls up towards the ceiling. The movement of the walls had caused cracks to appear in the walls, and the doors would not open. Cracks reappeared soon after repairs were made on the old cracks. The cracks grew every day. The Quinata family could not sell their house in that condition. Chairman Anderson asked Ms. Quinata if the contractor informed her of her rights as an owner. Ms. Quinata said the contractor did not inform her of her rights. The cracks did not begin to appear until after the 1-year warranty on the house.

Ellen White, private citizen, testified for A.B. 442. Ms. White purchased her Mill Creek home in September 1989. Heavy rains in January 1997 caused water to run down the walls inside her house from leaks in the roof. She experienced cracking in the vaulted ceiling in the entry of her house, and she learned there was no flashing in her roof which caused the water to run down her walls. DiLoreto Construction and Development Incorporated constructed her home and did not correct the problems in her home. She was unable to sell her house because of all the problems.

Donald Marks, President, Mill Creek Homeowner’s Association, testified for A.B. 442. He bought his new home in 1988. DiLoreto Construction and Development Incorporated controlled the homeowner’s association from 1988 to 1991. In 1988 the roofs began to leak and shingles had blown off roofs in Mill Creek houses. By 1995 the homeowners hired a roofing consultant. The consultant stated there was improper flashing on the roof. Mr. Marks felt he had not been treated properly as a homeowner.

Chairman Anderson stated he had combined his legislation with A.B. 442. Chairman Anderson asked Mr. Canepa how would A.B. 442 change current practices and solve the homeowner’s problems without bankrupting the builders. Mr. Canepa stated NRS 40.600 should not be dismantled and felt it was good legislation. However, there was a problem with some of the language, and there were loopholes in the language. He pointed out on page 4, lines 27 and 35, the phrase, "in good faith." In the past some strict constructionists had construed the law to say all one had to do was to make an offer. The offer could have been unreasonable, as long as it was an offer. Mr. Canepa wanted both sides to sit down and negotiate a settlement.

Chairman Anderson was concerned if A.B. 442 would put lawyers out of business. Mr. Maddox responded he would not go out of business, "There are always rights to be corrected."

David Pursiano, Attorney, Nevada Trial Lawyers Association, testified for A.B. 442. The customer service amendment would require the builder to take care of construction problems in the first years or the homeowner would take the contractor immediately into court. Mr. Pursiano stated the language, "to cure the defect," was important for the builder to understand in the amendment.

Assemblyman Brower stated he understood the phrase, "in good faith," having been involved in a number of mediations. He wanted to know how the bill would help improve the construction defect problem. Mr. Canepa referred Assemblyman Brower to page 3, lines 22 through 25, "(d) Must include for each denial of liability, if any, a statement of all grounds for the denial. (e) Must include for each offer of settlement, if any, one or more of the following." If the contractor denied the homeowner’s request, the contractor must explain the reason(s) for denial to the homeowner. If the contractor agreed to make the repair, the contractor must inform the homeowner the method of repair, adequacy of the repair, and cause of the defect. Assemblyman Brower asked if there was anything else Mr. Maddox needed to highlight concerning the bill. Mr. Maddox stated the bill was a sincere attempt to improve good legislation. Mr. Maddox mentioned the homeowner needed to have the house plans and engineering reports.

Assemblyman Collins apologized to his constituents because of time constraints, many could not testify on A.B. 442. Many of his constituents in Room 4401 of the Grant Sawyer State Office Building in Las Vegas had worn the same T-shirt with the phrase, "Stop S.B. 286."

James L. Wadhams, attorney, Southern Nevada Homebuilders Association, testified against A.B. 442. See (Exhibit J). He stated, "People who had bad construction deserve a remedy." The homeowner had to have a way short of litigation to resolve problems. A.B. 442 would go against the 1997 Calloway decision by the Nevada Supreme Court and contract law. That legislation gave contractors a last opportunity to stand behind their contracts and repair problems to avoid litigation. There were some builders who should be put out of the construction business because of their home defect record. He would like to see the problems prevented and the builder given an opportunity to repair the problem. The purpose of NRS 40.600 was to avoid litigation, if possible.

Mr. Wadhams explained if there was a problem with other consumer products, the consumer went to the store and worked with the merchant to fix the problem with the consumer product. Everyone’s house was a consumer product too. He stated there were two levels of the situation. The first level was the individual homeowner and the individual homeowner’s problems were uncomplicated. The second level was the 200-unit multiple dwellings. Those problem areas were more difficult to locate. Homeowner’s associations had instituted lawsuits with a handful of members, which made every member of the homeowner’s association part of the lawsuit with or without the individual homeowner’s consent. He suggested contractors needed to be licensed.

Assemblywoman Buckley asked why contractors had not asked for changes in legislation to prevent homeowners from litigation. Mr. Wadhams responded he had not seen any legislation removing the rights of a homeowner to sue. Assemblywoman Buckley asked with the building inspectors spending 10 to 15 minutes per house only looking at health and safety issues, was that part of the problem. Mr. Wadhams felt the responsibility of a house being properly constructed was the builder’s sole responsibility, not the building inspector. The issue was providing the homeowner the opportunity to fix the problem as opposed to holding the builder to perfect compliance with the uniform building code.

Assemblywoman Buckley was curious if the lawsuits were for absolute perfect compliance or for people who had defective homes. The number one priority was people to have their homes repaired in good faith and in a reasonable amount of time, since a home was a person’s largest investment.

Assemblyman Collins, a subcontractor, disclosed he was a member of the Southern Nevada Homebuilders. Solutions to the problems could be a qualified workforce and eliminating the bad builders. Mr. Wadhams stated the building department was not responsible for a contractor standing behind his contract. If a contractor did not stand behind his contract, the state licensing board should be concerned. Contractors needed to be screened and disciplined. He agreed there was a need to improve the quality of construction in the homes in Clark County.

Assemblyman Collins added many members of the Southern Nevada Home Builders and the Clark County Building Department did not enforce the provisions concerning a competent employee in electrical, mechanical, or plumbing to do the work correctly on the work site. He wanted to know if the rules to have a competent employee on the job should be waived. Mr. Wadhams responded the builder needed a last opportunity to correct the problem.

Assemblyman Claborn wanted to know who would pay for the costs of the repairs. Mr. Wadhams responded the bill was filled with opportunities for lawyers to delay a solution to the problem. Assemblyman Claborn asked if NRS 40.600 did not do the job. Mr. Wadhams stated there were identifiable defects, and there was the complex problem of the multiple-unit dwellings. Mr. Wadhams recommended avoiding litigation because of the 5 to 10 years litigation had taken in the past.

Assemblyman Carpenter wanted to see a procedure for homeowners to get their problems corrected. Mr. Wadhams reviewed the bill’s limited window of opportunity to resolve problems and avoid lengthy litigation. He wanted to focus on consumer protection with the State of Nevada Contractors’ Board revoking the license of negligent contractors. Assemblyman Carpenter wanted to know if there was something the Committee on Judiciary could do to resolve the problems. Mr. Wadhams was hopeful all parties involved could work together to find a solution.

Scott Rasmussen, representing the Nevada Contractors Network, testified from Las Vegas against A.B. 442. Nevada Contractors Network was a group of 450 subcontractors with 27,000 employees, both union and nonunion. He was concerned with the loss of jobs because of the laws allowing lawsuit. "If the goal of the committee was to remove lawyers and allow repairs to be corrected, A.B. 442 was not the bill." He said, "I do not think that lawyers are the ones you want building your homes." The hope in NRS 40.600 was the opportunity to repair the problems. The situation with lawsuits had gone beyond all reason. For example, the list of defects by alleged experts included that the contractor should replace batteries in smoke alarm detectors.

Ted Samuels, private citizen, testified from Las Vegas against A.B. 442. He gave an example of a 300-unit condominium complex that consisted of 30 buildings with each building having 10 condominium units. If one of the condominium owners discovered a defect and went before the homeowners’ board, usually the president of the board, the president would contact a construction defects attorney without consulting other homeowners in the complex. A contingency agreement would be signed involving all condominium owners in the complex, none of whom would be aware of their involvement in the lawsuit. He gave an example of Pacific Legends West which signed a contingency agreement giving the lawyer a 40 percent retainer plus expert witness expenses. Each owner would be out of pocket for the retainer and expert witnesses expenses whether the condominium owner had a defect or not.

Chairman Anderson closed the hearing on A.B. 442. He stated there were problems and all parties involved needed to be part of the solution. If there was no solution, the committee would not take action on A.B. 442 or any similar legislation. He opened the hearing on A.B. 196.

Assemblyman Donald G. Gustavson, District 32, testified for A.B. 196. He sponsored the bill on behalf of all young victims of DUI. The presence of a controlled substance was more detectable with improved testing equipment and it or its metabolite would be treated as DUI. The bill would remove the 7-year "look back" for first, second, and third DUI offenses. There would be an exception for a person on prescription medicine not informed about the impairment of the prescription.

Chairman Anderson informed the committee there was a conflict notice because A.B. 23 was state statute. A.B. 23 had become NRS 484.7392.

Jerry G. Landau, Special Assistant, District Attorney’s Office Maricopa County, Arizona, testified for A.B. 196. He had testified before the Arizona State Legislature on numerous occasions. He had been the chief of controlled substances in Maricopa County better known as Phoenix, AZ. He had worked with the National Highway Traffic Safety Administration and the National District Attorney’s Association in having developed a course for prosecution of vehicle homicide and DUI drugs. Arizona had a law on the books similar to A.B. 196. Arizona’s DUI arrests had increased because peace officer enforcement techniques had improved. First, peace officers had been trained for drug recognition. Second, the law had been improved so it did not violate a person’s rights. He stated there was no difference between a person being impaired by alcohol and a person being impaired by drugs. He referred to the phrase poly drug. Poly drug use pertained to the use of two or more drugs or alcohol and one or more drugs in a person’s system.

Mr. Landau referred to page 11, lines 1 through 4, "It is unlawful for a person who has a detectable amount of a controlled substance or its metabolite in his blood, urine or other bodily substance to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access." Maricopa County had sent all the attorneys in the district attorney’s office to drug recognition school. Peace officers attended the same school. He mentioned in 1998 the Phoenix Police Department had 269 DUI drug arrests and the Arizona Highway Patrol had 461 DUI drug arrests.

Assemblyman Carpenter asked if Mr. Landau had statistics on the increase of the number of people going to prison because of the Arizona law. Mr. Landau responded penalties for DUI alcohol and DUI drugs were the same with a minimum of 1 day in jail for a first offense. The second offense would be 60 days minimum to a maximum of 6 months in jail. The third offense would be a minimum of 4 months in prison. He did not have statistics but stated if the district attorney’s office prosecuted more people, there would be more people in jail.

Gerald Mager, father of a DUI drug accident victim testified for A.B. 196. He referred to (Exhibit K) that stated nine states had drug DUI laws. The New England Journal of Medicine study discovered drug DUI was an underdetected crime. "Correlating blood or urine levels of certain drugs with specific driving problems is not yet possible, and the correlation between impairment and serum levels of drugs may never be established as it had been for alcohol. This does not have to impede efforts to halt the use of illicit intoxicants by drivers." A person guilty of drug DUI needed to be prosecuted for drug DUI, otherwise society was condoning drug use and driving. He felt A.B. 196 would reduce drug DUI in the State of Nevada. He mentioned federal grant money was available to purchase vans, testing equipment, and training of peace officers, which allowed for testing a person suspected of drug use at the scene. The test consisted of a urine test paid by the person who tested positive for drugs. Since drug use was a felony, he wanted to see drug DUI be a felony, too.

Ilona Mager, mother of a DUI drug accident victim, testified for A.B. 196. She had been a nurse for 20 years. Her son Steven Smith, age 17, was killed February 14, 1996, in a car crash involving drug use. There were no laws directed to the presence of controlled substances in the blood of drivers who caused death or serious injury to others.

The Washoe County district attorney had no established levels for controlled drugs. Nevada had adopted the Drug Recognition Expert Program which trained peace officers to recognize signs of drug use. At the scene of an accident it was difficult to assess a driver for drug impairment. The use of cocaine was extremely difficult to assess by observing behavior.

The New England Journal of Medicine article dated August 25, 1994, "Testing reckless drivers for cocaine and marijuana," suggested drug use and driving had been detected and was a serious problem. There were 175 subjects stopped for reckless driving, of which 150 (86 percent) submitted to urine samples for drug testing at the scene of arrest and 88 (59 percent) tested positive for drugs. Of those that tested positive, 13 percent used cocaine, 33 percent tested positive for marijuana, and 12 percent for both. "The presence of an illicit drug in the urine indicated prior illegal action and could add a dimension of probable cause to observed driving performance."

The study in the New England Journal of Medicine was conducted in Memphis, Tennessee. In 1992 there were 5,000 people arrested for driving while intoxicated. Less than 1 percent were charged with driving under the influence of drugs. In other studies injured drivers in emergency rooms were tested for drugs. The results of the study were, within certain age groups illicit drugs were present more often than alcohol. The affect of using rapid field test for drugs to identify DUI drivers would allow peace officers to make more arrests.

A.B. 196 simply stated the presence of any detectable amount of controlled substance or its metabolite would be enough to charge a driver with DUI. Nine other states had passed such laws. In Nevada where both drugs and alcohol were present in the driver’s system at the time of the accident, the fatality rate had doubled in 1 year. Fatal car accidents where there was the use of drugs had consistently climbed each year.

The Magers felt it was time for Nevada to take the lead and send a clear message, drug use would not be tolerated in the state and especially when it took the lives of the innocent.

Paula Olever, mother of a DUI drug accident victim, testified for A.B. 196. She lost her daughter, Lauren, and her other daughter Emily received major injuries as the result of an accident involving a driver who was drug DUI. The driver was observed 2 days before the accident smoking crank and 2 hours before the accident smoking marijuana. The district attorney did not want to prosecute felony DUI because there were no levels for metabolized drugs established in Nevada.

Judy Jacoboni, victim advocate, (MADD) Lyon County Chapter, testified for A.B. 196. She supported the Magers and other victims involved with the bill.

Laurel Stadler, Legislative Liaison, (MADD) Lyon County Chapter, testified for A.B. 196. See (Exhibit L). The 7-year "look back" was removed in A.B. 196 which she strongly supported.

Chairman Anderson asked Ms. Stadler if she knew how many states in the 10, 12 and lifetime category had a 1-year maximum sentence for a second DUI offender like Nevada.

Ms. Stadler responded she did not know the answer to his question. She stated most second-time DUI offenders received the 10-day sentence in jail, not the maximum sentence of 1 year.

Roger B. Whomes, Deputy District Attorney, Criminal Division, Washoe County District Attorney, testified for A.B. 196. He supported the removal of the 7-year "look back." Nevada had a habitual criminal statute. The habitual criminal statute looked back using misdemeanors and felonies to sentence a convicted person.

Judge Jay D. Dilworth, Reno Municipal Court, testified against A.B. 196. He had been a judge for 12 years and was one of the first judges on the DUI task force. He created the victim impact panel and lobbied for legislation for the victim impact panel. He was concerned with page 1, lines 1 through 4: "It is unlawful for a person who had a detectable amount of a controlled substance or its metabolite in his blood, urine or other bodily substance to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access." He has taken the prescription drug, vicodin, at night before going to bed for pain in his knee. He disagreed with Mr. Landau because he had known he should not drive for 4 to 6 hours after taking vicodin. The metabolite could be in his system for up to 5 days. Judge Dilworth had no way of knowing if he had metabolite in his system unless he had a blood test.

Judge Dilworth would like the bill amended to read, "if a person was on a prescribed medication the only time the person could commit a felony was when the prescribed medication would have a negative impact on the person’s ability to drive or operate machinery." His pharmacist stated some prescribed drugs remained in a person’s system for up to 30 days. Judge Dilworth was concerned about being prosecuted by a district attorney because district attorneys did not look at the intent of the law only how the law read. He was concerned every person on prescriptions could be a potential felon.

Daniel J. Albregts, attorney, a member of the Advisory Commission on Sentencing, testified from Las Vegas against A.B. 196. While he does not tolerate the taking of drugs and then driving a vehicle, he felt there was a constitutional problem with a lifetime look back when a convict was sentenced. His comments and concerns are as follows:

Chairman Anderson stated he knew the fiscal estimate for the bill was $5 million for first-time offenders.

David S. Gibson, attorney and Clark County Public Defender, testified against A.B. 196. He stated the removal of the 7-year window would cause problems. The 7-year window began June 1, 1981. The 7-year window had to have a starting date. The window gave some convicts a break.

Mr. Gibson asked Mr. Landau if alcohol DUI or drug DUI were felony offenses in Arizona. In Arizona those offenses were misdemeanors. He was concerned that if a person’s irresponsible driving was not caused by drug use, even though a person had traceable amounts of drugs in their system, they should be charged with driving to endanger others.

Gemma Greene, attorney, representing Nevada District Attorneys Association, testified neutrally. She was concerned with the language on Page 11, lines 1 and 2, "It is unlawful for a person who has a detectable amount of a controlled substance or its metabolite in his blood, urine, or other bodily substance to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access." A hair test could prove a person had used marijuana several months ago. She asked Mr. Landau, and he informed her drug DUI was a strict legal liability crime in Arizona. She was concerned with any detectable amounts of drugs or their metabolites. The way A. B. 196 was written drug DUI was a more serious offense than alcohol DUI. She wanted alcohol DUI and drug DUI to be the same penalty. Chairman Anderson mentioned to get a bill passed in the Assembly required 23 votes. If the penalties for drug DUI were raised to the same as alcohol DUI, he would have an easier time rounding up 23 votes. Ms. Green stated, "as a district attorney she had an easier time proving alcohol DUI because of the ease of accurately determining alcohol impairment." As a prosecuting attorney, she asked herself, "Could I prove this case beyond a shadow of a doubt, which was necessary for conviction."

Dana Mathiesen, Management Analyst III, Department of Motor Vehicles and Public Safety (DMV and PS), testified neutrally. See (Exhibit M). She stated the DMV used two systems to obtain driving records, Problem Driver Pointer System (PDPS) for regular drivers’ license and Commercial Drivers License Information System, (CDLIS) for commercial driving records. PDPS did not transfer the driver’s previous driving record. The noncommercial driver had a "fresh start" driving record in Nevada. The CDLIS transferred the commercial driver’s entire commercial driving record from every state in which the driver had a commercial driver’s license. Commercial drivers driving a commercial vehicle were legally DUI with a .04 percent BAC. A commercial driver would lose their commercial license with a .04 to .09 percent BAC, but would not lose their noncommercial driver’s license. The American Association of Motor Vehicle Administrators (AAMVA) was developing a system whereby noncommercial drivers’ entire driving records would be transferred to every state to which a driver moved and sought a driver’s license. She stated, using the entire AAMVA driving record would cause problems for the 7-year "look back." Lastly, all states used uniform conviction codes. There was a code for alcohol DUI and a code for DUI drugs or driving under the influence of both. She stated there were no separate codes for injury and non-injury accidents.

Mr. Landau stated if a person in Arizona had a valid prescription for a drug, it would not be an offense in Arizona. DUI alcohol and DUI drugs were treated the same in Arizona. Assemblyman Collins asked Mr. Landau what happened in the case of a person arrested for drug DUI when it was the person’s prescription that caused the drug DUI. Mr. Landau said the arrest record would show the charge was dismissed.

Ms. Greene stated the statutory scheme in Nevada and Arizona was different. Arizona charged alcohol use and drug use differently than Nevada.

Mr. Mager had two possible amendments. First, prescription drugs, which did not impair the driver, would be exempted from the law, and the driver would not be prosecuted. Second, reduce the penalty for drug DUI to the same as alcohol DUI.

Chairman Anderson closed the hearing of A.B. 196.

Chairman Anderson discussed the new committee calendar for March and the first week in April. Chairman Anderson adjourned the meeting at 1:04 p.m.